On appeal from the Superior Court, Law Division, Burlington County.
Dreier and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
[224 NJSuper Page 349] On March 11, 1984, Brenda Haines died from being exposed to carbon monoxide while she sat in a car belonging to David A. Phillips. Brenda's father pulled her from the car, and carried her into the house and called the local first aid squad. Brenda's parents and their other children watched helplessly as the first aid squad's revival attempt failed. They filed claims for wrongful death, survivorship and emotional distress against the estate of Phillips. Phillips' liability insurance carrier, defendant State Farm Insurance Co. (State Farm), disclaimed maximum coverage on the $25,000-per-injury/$50,000-per-accident liability policy. Plaintiffs filed a declaratory judgment action against State Farm seeking a declaration that more than one person suffered bodily injury as a result of Brenda's death, and seeking
to require State Farm to pay on behalf of Phillip's estate the policy limit of $50,000 per accident, rather than the policy limit of $25,000 per injury.*fn1 Following cross-motions for summary judgment, the judge granted plaintiffs' summary judgment motion and denied that of defendant. Defendant appeals from the ensuing June 5, 1987 order, contending as it did before the Law Division that the individual family members' claims for emotional distress are derived entirely from Brenda Haines's one bodily injury. We affirm.
State Farm's claim that there was one injury, Brenda's death, equates the claim of Brenda's family with the per quod claim of a spouse, which would undeniably be included within State Farm's $25,000-per-injury limit for Brenda's death. See Williams v. State Farm Mutual Auto Ins. Co., 99 N.J. Super. 377, 379 (Law Div.1968), aff'd 104 N.J. Super. 403 (App.Div. 1969), aff'd 54 N.J. 580 (1969). Accord: Travelers Indem. Co. v. Cornelsen, 272 Md. 48, 321 A.2d 149 (1974); Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So. 2d 22 (1972); United Services Auto. Ass'n. v. Warner, 64 Cal.App. 3d 957, 135 Cal.Rptr. 34 (Cal.App.1976); Skroh v. Travelers Ins. Co., 227 So. 2d 328 (Fla.App.1969). The stated rationale for this limitation is that a per quod claim is one for consequential damage flowing from the injuries to another, rather than damage for direct injury. See Annotation, "Construction and Application of Provision in Liability Policy Limiting Amount of Insurer's Liability to One Person," 13 A.L.R. 3d 1228, 1234 (1967). The question posed by this appeal is whether plaintiffs' cause of action for the negligent infliction of emotional distress is analogous.
An action per quod is of ancient origin. A husband originally sought damages for the loss of his wife's society, companionship and services due to the fault of another. Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 84 (1965). That doctrine has been expanded over the years, not only for married claimants, id. at 95, but also for parents, concerning the loss of services of a child. Orr v. Orr, 36 N.J. 236, 239-240 (1961).
Plaintiffs assert that the law of consortium is inapposite because, under Portee v. Jaffee, 84 N.J. 88 (1980), emotional distress claims are not derivative, but separate and independent actions. Defendant argues that plaintiffs' cause of action can be both derivative and independent, relying upon Tornquist v. Perkowski, 208 N.J. Super. 88, 96-97 (Law Div.1984), and Orr v. Orr, supra, where our Supreme Court said,
[W]hile ordinarily the facts establishing initial liability of the defendant to the child must be proved in a parent's cause of action for consequential damages, application of the term 'derivative' to such a cause of action does not thereby transform what is basically a separate cause of action into one which is dependent upon the continued existence of another. [36 N.J. at 239].
See Ekalo v. Constructive Service Corp. of America, supra, 46 N.J. at 90 (1965); Neely v. Kossove, 198 N.J. Super. 503, 505 (Law Div.1984).
We reject defendant's reasoning. We have addressed the difficulty in reconciling the derivative yet separate nature of a per quod claim by stating that such a claim is separate only in the sense that it is a separate element of a damage claim. Tichenor v. Santillo, 218 N.J. Super. 165, 175 (App.Div.1987).
In Goncalvez v. Patuto, 188 N.J. Super. 620 (App.Div.1983), we held that a claim for emotional distress is significantly different from a per quod claim. There a release of a wrongful death claim, survival claim and a per quod claim by parents did not bar decedent's brother's claim for emotional distress. We said,
Even more significant is the fact that Rui's emotional injury claim constitutes his own independent cause of action. Unlike all the claims made in the first action resulting from Mario's injury and death, Rui's emotional injury claim is not ...